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Simplifying contract language

I’ve read a lot of arguments about the use of plain English, and I haven’t often been convinced by them. Now this article by Shawn Burton is at first glance an interesting one (thanks to Inge for recommending it on Twitter), but contains some problems.

Are pages of definitions; words like “heretofore,” “indemnification,” “warrant,” and “force majeure”; and phrases like “notwithstanding anything to the contrary herein,” “subject to the foregoing,” and “including but in no way limited to” necessary for an agreement to be enforceable? Is there some counterintuitive value in useless boilerplate language? Does a contract really need 15-word strings of synonyms; all-cap, italicized, bolded sentences that span multiple pages; awkward sentences containing numerous semicolons; and outdated grammar to be worthy of signature? In my opinion, the answer is a resounding no.

Of course, it would be a good idea to remove archaic words like ‘heretofore’, but what about words with a legal meaning like ‘force majeure’. (The ’15-word strings of synonyms’ are one of the reasons some legal translators prefer to translate from German to English even if German is their native language, because German contracts are simpler, partly because terms are backed up by the Civil Code and other legislation.)

Burton writes: ‘Business leaders should not have to call an attorney to interpret an agreement that they are expected to administer.’ I have my doubts about that. And the ‘litmus test’ was whether a ‘high-schooler’ could understand the contract. Maybe this worked with simplified contracts for customers, but surely not for every type of contract.

Here’s an example from the end of the article:

Before and After

Language in the indemnification clause of a services contract was revised to be clearer and much more concise:

BEFORE

Customer shall indemnify, defend, and hold Company harmless from any and all claims, suits, actions, liabilities, damages and costs, including reasonable attorneys’ fees and court costs, incurred by Company arising from or based upon (a) any actual or alleged infringement of any United States patents, copyright, or other intellectual property right of a third party, attributable to Customer’s use of the licensed System with other software, hardware or configuration not either provided by Company or specified in Exhibit D.3, (b) any data, information, technology, system or other Confidential Information disclosed or made available by Customer to Company under this Agreement, (c) the use, operation, maintenance, repair, safety, regulatory compliance or performance of any aircraft owned, leased, operated, or maintained by Customer of (d) any use, by Customer or by a third party to whom Customer has provided the information, of Customer’s Flight Data, the System, or information generated by the System.

AFTER

If an arbitrator finds that this contract was breached and losses were suffered because of that breach, the breaching party will compensate the non-breaching party for such losses or provide the remedies specified in Section 8 if Section 8 is breached.

In context, it appears that ‘AFTER’ does not indicate the final version. Shawn Burton was made general counsel of GE Aviation’s digital-services unit in 2013 – not very long ago. Three digital-services businesses had to be consolidated, and all three had complex contracts containing text like ‘BEFORE’ above. Three long contracts were replaced by one five-page one. But the content was different too! It was vetted by Weil, Gotshal & Manges and ‘refinements’ were made. Burton lays weight on the amount of time that was saved in negotiation.

It was clear that this would not be the first time Burton had written about the use of plain language in GE Aviation contracts, and sure enough a web search revealed more. It also revealed a blog post by Ken Adams critiquing this very article. dated yesterday: